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H. B. No. 575 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Setzer, Fessler, Evans, Gibbs, Batchelder, Flowers, McGregor, J.
A BILL
To amend section 5739.01 of the Revised Code to
exempt from the sales tax massage therapy that is
provided by an individual who holds a certificate
to practice massage therapy.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5739.01 of the Revised Code be
amended to read as follows:
Sec. 5739.01. As used in this chapter:
(A) "Person" includes individuals, receivers, assignees,
trustees in bankruptcy, estates, firms, partnerships,
associations, joint-stock companies, joint ventures, clubs,
societies, corporations, the state and its political
subdivisions,
and combinations of individuals of any form.
(B) "Sale" and "selling" include all of the following
transactions for a consideration in any manner, whether
absolutely
or conditionally, whether for a price or rental, in
money or by
exchange, and by any means whatsoever:
(1) All transactions by which title or possession, or
both,
of tangible personal property, is or is to be transferred,
or a
license to use or consume tangible personal property is or
is to
be granted;
(2) All transactions by which lodging by a hotel is or is
to
be furnished to transient guests;
(3) All transactions by which:
(a) An item of tangible personal property is or is to be
repaired, except property, the purchase of which would not be
subject to the tax imposed by section 5739.02 of the Revised Code;
(b) An item of tangible personal property is or is to be
installed, except property, the purchase of which would not be
subject to the tax imposed by section 5739.02 of the Revised Code
or
property that is or is to be incorporated into and will become
a
part of a production, transmission, transportation, or
distribution system for the delivery of a public utility service;
(c) The service of washing, cleaning, waxing, polishing,
or
painting a motor vehicle is or is to be furnished;
(d) Until August 1, 2003, industrial laundry cleaning
services are or are to be
provided and, on and after August 1,
2003, laundry and dry cleaning services are or are to be provided;
(e) Automatic data processing, computer services, or
electronic information services are or are to be provided for use
in business when the true object of the transaction is the
receipt
by the consumer of automatic data processing, computer
services,
or electronic information services rather than the
receipt of
personal or professional services to which automatic
data
processing, computer services, or electronic information
services
are incidental or supplemental. Notwithstanding any
other
provision of this chapter, such transactions that occur
between
members of an affiliated group are not sales. An
"affiliated
group"
means two or more persons related in such a way
that one
person
owns or controls the business operation of
another member
of the
group. In the case of corporations with
stock, one
corporation
owns or controls another if it owns more
than fifty
per cent of
the other corporation's common stock with
voting
rights.
(f) Telecommunications service, including prepaid calling
service, prepaid wireless calling service, or ancillary service,
is or is to be
provided, but not including
coin-operated
telephone
service;
(g) Landscaping and lawn care service is or is to be
provided;
(h) Private investigation and security service is or is to
be
provided;
(i) Information services or tangible personal property is
provided or ordered by means of a nine hundred telephone call;
(j) Building maintenance and janitorial service is or is
to
be provided;
(k) Employment service is or is to be provided;
(l) Employment placement service is or is to be provided;
(m) Exterminating service is or is to be provided;
(n) Physical fitness facility service is or is to be
provided;
(o) Recreation and sports club service is or is to be
provided;
(p) On and after August 1, 2003, satellite broadcasting
service is or is to be provided;
(q) On and after August 1, 2003, personal care service is or
is to be provided to an individual. As used in this division,
"personal care service" includes skin care, the application of
cosmetics, manicuring, pedicuring, hair removal, tattooing, body
piercing, tanning, massage, and other similar services. "Personal
care service" does not include a service provided by or on the
order of a licensed physician or licensed chiropractor, massage
therapy provided by an individual who holds a valid certificate to
practice massage therapy issued under section 4731.15 of the
Revised Code, or the
cutting, coloring, or styling of an
individual's hair.
(r) On and after August 1, 2003, the transportation of
persons by motor vehicle or aircraft is or is to be provided, when
the transportation is entirely within this state, except for
transportation provided by an ambulance service, by a transit bus,
as defined in section 5735.01 of the Revised Code, and
transportation provided by a citizen of the United States holding
a certificate of public convenience and necessity issued under 49
U.S.C. 41102;
(s) On and after August 1, 2003, motor vehicle towing service
is or is to be provided. As used in this division, "motor vehicle
towing service" means the towing or conveyance of a wrecked,
disabled, or illegally parked motor vehicle.
(t) On and after August 1, 2003, snow removal service is or
is to be provided. As used in this division, "snow removal
service" means the removal of snow by any mechanized means, but
does not include the providing of such service by a person that
has less than five thousand dollars in sales of such service
during the calendar year.
(u) Electronic publishing service is or is to be provided to
a consumer for use in business, except that such transactions
occurring between members of an affiliated group, as defined in
division (B)(3)(e) of this section, are not sales.
(4) All transactions by which printed, imprinted,
overprinted, lithographic, multilithic, blueprinted, photostatic,
or other productions or reproductions of written or graphic
matter
are or are to be furnished or transferred;
(5) The production or fabrication of tangible personal
property for a consideration for consumers who furnish either
directly or indirectly the materials used in the production of
fabrication work; and include the furnishing, preparing, or
serving for a consideration of any tangible personal property
consumed on the premises of the person furnishing, preparing, or
serving such tangible personal property. Except as provided in
section 5739.03 of the Revised Code, a construction contract
pursuant to which tangible personal property is or is to be
incorporated into a structure or improvement on and becoming a
part of real property is not a sale of such tangible personal
property. The construction contractor is the consumer of such
tangible personal property, provided that the sale and
installation of carpeting, the sale and installation of
agricultural land tile, the sale and erection or installation of
portable grain bins, or the provision of landscaping and lawn
care
service and the transfer of property as part of such service
is
never a construction contract.
As used in division (B)(5) of this section:
(a) "Agricultural land tile" means fired clay or concrete
tile, or flexible or rigid perforated plastic pipe or tubing,
incorporated or to be incorporated into a subsurface drainage
system appurtenant to land used or to be used directly in
production by farming, agriculture, horticulture, or
floriculture.
The term does not include such materials when they
are or are to
be incorporated into a drainage system appurtenant
to a building
or structure even if the building or structure is
used or to be
used in such production.
(b) "Portable grain bin" means a structure that is used or
to
be used by a person engaged in farming or agriculture to
shelter
the person's grain and that is designed to be
disassembled
without
significant damage to its component parts.
(6) All transactions in which all of the shares of stock
of
a
closely held corporation are transferred, if the corporation
is
not engaging in business and its entire assets consist of
boats,
planes, motor vehicles, or other tangible personal
property
operated primarily for the use and enjoyment of the
shareholders;
(7) All transactions in which a warranty, maintenance or
service contract, or similar agreement by which the vendor of the
warranty, contract, or agreement agrees to repair or maintain the
tangible personal property of the consumer is or is to be
provided;
(8) The transfer of copyrighted motion picture films used
solely for advertising purposes, except that the transfer of such
films for exhibition purposes is not a sale.
(9) On and after August 1, 2003, all transactions by which
tangible personal property is or is to be stored, except such
property that the consumer of the storage holds for sale in the
regular course of business.
Except as provided in this section, "sale" and "selling" do
not include transfers of interest in leased property where the
original lessee and the terms of the original lease agreement
remain unchanged, or professional, insurance, or personal service
transactions that involve the transfer of tangible personal
property as an inconsequential element, for which no separate
charges are made.
(C) "Vendor" means the person providing the service or by
whom the transfer effected or license given by a sale is or is to
be made or given and, for sales described in division (B)(3)(i)
of
this section, the telecommunications service vendor that
provides
the nine hundred telephone service; if two or more
persons are
engaged in business at the same place of business
under a single
trade name in which all collections on account of
sales by each
are made, such persons shall constitute a single
vendor.
Physicians, dentists, hospitals, and veterinarians who are
engaged in selling tangible personal property as received from
others, such as eyeglasses, mouthwashes, dentifrices, or similar
articles, are vendors. Veterinarians who are engaged in
transferring to others for a consideration drugs, the dispensing
of which does not require an order of a licensed veterinarian or
physician under federal law, are vendors.
(D)(1) "Consumer" means the person for whom the service is
provided, to whom the transfer effected or license given by a
sale
is or is to be made or given, to whom the service described
in
division (B)(3)(f) or (i) of this section is charged, or to
whom
the admission is granted.
(2) Physicians, dentists, hospitals, and blood banks
operated
by nonprofit institutions and persons licensed to
practice
veterinary medicine, surgery, and dentistry are
consumers
of all
tangible personal property and services
purchased by them
in
connection with the practice of medicine,
dentistry, the
rendition
of hospital or blood bank service, or
the practice of
veterinary
medicine, surgery, and dentistry. In
addition to being
consumers
of drugs administered by them or by
their assistants
according to
their direction, veterinarians also
are consumers of
drugs that
under federal law may be dispensed
only by or upon the
order of a
licensed veterinarian or
physician, when transferred by
them to
others for a consideration
to provide treatment to animals
as
directed by the veterinarian.
(3) A person who performs a facility management, or
similar
service contract for a contractee is a consumer of all
tangible
personal property and services purchased for use in
connection
with the performance of such contract, regardless of
whether title
to any such property vests in the contractee. The
purchase of
such
property and services is not subject to the
exception for
resale
under division (E)(1) of this section.
(4)(a) In the case of a person who purchases printed
matter
for the purpose of distributing it or having it distributed to the
public or to a designated segment of the public, free of charge,
that person
is the consumer of that printed matter, and the
purchase of that printed
matter for that purpose is a sale.
(b) In the case of a person who produces, rather than
purchases, printed matter for the purpose of distributing it or
having it
distributed to the public or to a designated segment of
the public, free of
charge, that person is the consumer of all
tangile tangible personal property and
services purchased for use
or
consumption in the production of that printed
matter. That
person
is not entitled to claim exemption under division
(B)(42)(f) of
section 5739.02 of the Revised Code for any
material incorporated
into the printed
matter or
any equipment,
supplies, or services
primarily used to produce the
printed
matter.
(c) The distribution of
printed matter to the public or to a
designated segment of the public, free of
charge, is not a sale to
the members of the public to whom the printed matter
is
distributed or to any persons who purchase space in the printed
matter for
advertising or other purposes.
(5) A person who makes sales of any of the services listed
in
division (B)(3) of this section is the consumer of any tangible
personal property used in performing the service. The purchase of
that
property is not subject to the resale exception under
division (E)(1)
of this section.
(6) A person who engages in highway transportation for hire
is the consumer of all packaging materials purchased by that
person and used in performing the service, except for packaging
materials sold by such person in a transaction separate from the
service.
(E) "Retail sale" and "sales at retail" include all sales,
except those in which the purpose of the consumer is to resell the
thing transferred or benefit of the
service provided, by a person
engaging in business, in the form
in
which the same is, or is to
be, received by the person.
(F) "Business" includes any activity engaged in by any
person
with the object of gain, benefit, or advantage, either
direct or
indirect. "Business" does not include the activity of
a
person in
managing and investing the person's own funds.
(G) "Engaging in business" means commencing, conducting,
or
continuing in business, and liquidating a business when the
liquidator thereof holds
itself out to the public as
conducting
such business. Making a casual sale is not engaging in
business.
(H)(1)(a) "Price," except as provided in divisions (H)(2) and
(3) of this section, means the total amount of consideration,
including cash, credit, property, and services, for which tangible
personal property or services are sold, leased, or rented, valued
in money, whether received in money or otherwise, without any
deduction for any of the following:
(i) The vendor's cost of the property sold;
(ii) The cost of materials used, labor or service costs,
interest, losses, all costs of transportation to the vendor, all
taxes imposed on the vendor, including the tax imposed under
Chapter 5751. of the Revised Code, and any other expense of the
vendor;
(iii) Charges by the vendor for any services necessary to
complete the sale;
(iv) On and after August 1, 2003, delivery charges. As used
in this division, "delivery charges" means charges by the vendor
for preparation and delivery to a location designated by the
consumer of tangible personal property or a service, including
transportation, shipping, postage, handling, crating, and packing.
(v) Installation charges;
(vi) Credit for any trade-in.
(b) "Price" includes consideration received by the vendor
from a third party, if the vendor actually receives the
consideration from a party other than the consumer, and the
consideration is directly related to a price reduction or discount
on the sale; the vendor has an obligation to pass the price
reduction or discount through to the consumer; the amount of the
consideration attributable to the sale is fixed and determinable
by the vendor at the time of the sale of the item to the consumer;
and one of the following criteria is met:
(i) The consumer presents a coupon, certificate, or other
document to the vendor to claim a price reduction or discount
where the coupon, certificate, or document is authorized,
distributed, or granted by a third party with the understanding
that the third party will reimburse any vendor to whom the coupon,
certificate, or document is presented;
(ii) The consumer identifies the consumer's self to the
seller as a member of a group or organization entitled to a price
reduction or discount. A preferred customer card that is available
to any patron does not constitute membership in such a group or
organization.
(iii) The price reduction or discount is identified as a
third party price reduction or discount on the invoice received by
the consumer, or on a coupon, certificate, or other document
presented by the consumer.
(c) "Price" does not include any of the following:
(i) Discounts, including cash, term, or coupons that are not
reimbursed by a third party that are allowed by a vendor and taken
by a consumer on a sale;
(ii) Interest, financing, and carrying charges from credit
extended on the sale of tangible personal property or services, if
the amount is separately stated on the invoice, bill of sale, or
similar document given to the purchaser;
(iii) Any taxes legally imposed directly on the consumer that
are separately stated on the invoice, bill of sale, or similar
document given to the consumer. For the purpose of this division,
the tax imposed under Chapter 5751. of the Revised Code is not a
tax directly on the consumer, even if the tax or a portion thereof
is separately stated.
(iv) Notwithstanding divisions (H)(1)(b)(i) to (iii) of this
section, any discount allowed by an automobile manufacturer to its
employee, or to the employee of a supplier, on the purchase of a
new motor vehicle from a new motor vehicle dealer in this state.
(2) In the case of a sale of any new motor vehicle by a
new
motor vehicle dealer, as defined in section 4517.01 of the
Revised
Code, in which another motor vehicle is accepted by the
dealer as
part of the consideration received, "price" has the
same meaning
as in division (H)(1) of this section, reduced by
the credit
afforded the consumer by the dealer for the motor
vehicle received
in trade.
(3) In the case of a sale of any watercraft or outboard
motor
by a watercraft dealer licensed in accordance with section
1547.543 of the Revised Code, in which another watercraft,
watercraft and trailer, or outboard motor is accepted by the
dealer as part of the consideration received, "price" has the
same
meaning as in division (H)(1) of this section, reduced by
the
credit afforded the consumer by the dealer for the
watercraft,
watercraft and trailer, or outboard motor received in
trade. As
used in this division, "watercraft" includes an outdrive unit
attached to the watercraft.
(I) "Receipts" means the total amount of the prices of the
sales of vendors, provided that cash discounts allowed and taken
on sales at the time they are consummated are not included, minus
any amount deducted as a bad debt pursuant to section 5739.121 of
the Revised Code. "Receipts" does not include the sale price of
property returned or services rejected by consumers when the full
sale price and tax are refunded either in cash or by credit.
(J) "Place of business" means any location at which a
person
engages in business.
(K) "Premises" includes any real property or portion
thereof
upon which any person engages in selling tangible
personal
property at retail or making retail sales and also
includes any
real property or portion thereof designated for, or
devoted to,
use in conjunction with the business engaged in by
such person.
(L) "Casual sale" means a sale of an item of tangible
personal property
that was obtained by the person making the
sale,
through purchase or otherwise, for the person's own use and
was
previously subject to any state's taxing
jurisdiction on its
sale
or use, and includes such items acquired
for the seller's use
that
are sold by an auctioneer employed
directly by the person for
such
purpose, provided the location of
such sales is not the
auctioneer's permanent place of business.
As
used in this
division, "permanent place of business" includes
any
location
where such auctioneer has conducted more than two
auctions during
the year.
(M) "Hotel" means every establishment kept, used,
maintained,
advertised, or held out to the public to be a place
where sleeping
accommodations are offered to guests, in which
five
or more rooms
are
used for the accommodation of such guests,
whether
the rooms
are in one or several structures.
(N) "Transient guests" means persons occupying a room or
rooms for sleeping accommodations for less than thirty
consecutive
days.
(O) "Making retail sales" means the effecting of
transactions
wherein one party is obligated to pay the price and
the other
party is obligated to provide a service or to transfer
title to or
possession of the item sold. "Making retail sales"
does not
include the preliminary acts of promoting or soliciting
the retail
sales, other than the distribution of printed matter
which
displays or describes and prices the item offered for sale,
nor
does it include delivery of a predetermined quantity of
tangible
personal property or transportation of property or
personnel to or
from a place where a service is performed,
regardless of whether
the vendor is a delivery vendor.
(P) "Used directly in the rendition of a public utility
service" means that property that is to be incorporated into and
will become a part of the consumer's production, transmission,
transportation, or distribution system and
that retains its
classification as tangible personal property after such
incorporation; fuel or power used in the production,
transmission,
transportation, or distribution system; and
tangible personal
property used in the repair and maintenance of
the production,
transmission, transportation, or distribution
system, including
only such motor vehicles as are specially
designed and equipped
for such use. Tangible personal property
and services used
primarily in providing highway transportation
for hire are not
used directly in the rendition of a public utility service. In
this definition, "public utility" includes a citizen of the United
States holding, and required to hold, a certificate of public
convenience and necessity issued under 49 U.S.C. 41102.
(Q) "Refining" means removing or separating a desirable
product from raw or contaminated materials by distillation or
physical, mechanical, or chemical processes.
(R) "Assembly" and "assembling" mean attaching or fitting
together parts to form a product, but do not include packaging a
product.
(S) "Manufacturing operation" means a process in which
materials are changed, converted, or transformed into a different
state or form from which they previously existed and includes
refining materials, assembling parts, and preparing raw materials
and parts by mixing, measuring, blending, or otherwise committing
such materials or parts to the manufacturing process.
"Manufacturing operation" does not include packaging.
(T) "Fiscal officer" means, with respect to a regional
transit authority, the secretary-treasurer thereof, and with
respect to a county
that is a transit authority, the fiscal
officer of the county transit board if one is appointed pursuant
to
section 306.03 of the Revised Code or the county auditor if the
board of
county commissioners operates the county transit system.
(U) "Transit authority" means a regional transit authority
created pursuant to section 306.31 of the Revised Code or a
county
in which a county transit system is created pursuant to
section
306.01 of the Revised Code. For the purposes of this
chapter, a
transit authority must extend to at least the entire
area of a
single county. A transit authority
that includes
territory
in
more
than one county must include all the area of
the most
populous
county
that is a part of such transit
authority.
County
population
shall be measured by the most
recent census
taken by
the United
States census bureau.
(V) "Legislative authority" means, with respect to a
regional
transit authority, the board of trustees thereof, and
with respect
to a county
that is a transit authority, the
board
of county
commissioners.
(W) "Territory of the transit authority" means all of the
area included within the territorial boundaries of a transit
authority as they from time to time exist. Such territorial
boundaries must at all times include all the area of a single
county or all the area of the most populous county
that is a
part
of such transit authority. County population shall be
measured by
the most recent census taken by the United States
census bureau.
(X) "Providing a service" means providing or furnishing
anything described in division (B)(3) of this section for
consideration.
(Y)(1)(a) "Automatic data processing" means processing of
others' data, including keypunching or similar data entry
services
together with verification thereof, or providing access
to
computer equipment for the purpose of processing data.
(b) "Computer services" means providing services
consisting
of specifying computer hardware configurations and
evaluating
technical processing characteristics, computer
programming, and
training of computer programmers and operators,
provided in
conjunction with and to support the sale, lease, or
operation of
taxable computer equipment or systems.
(c) "Electronic information services" means providing
access
to computer equipment by means of telecommunications
equipment for
the purpose of either of the following:
(i) Examining or acquiring data stored in or accessible to
the computer equipment;
(ii) Placing data into the computer equipment to be
retrieved
by designated recipients with access to the computer
equipment.
For transactions occurring on or after the effective date of
the amendment of this section by H.B. 157 of the 127th general
assembly, December 21, 2007, "electronic information services"
does not include
electronic publishing as defined in division
(LLL) of this
section.
(d) "Automatic data processing, computer services, or
electronic information services" shall not include personal or
professional services.
(2) As used in divisions (B)(3)(e) and (Y)(1) of this
section, "personal and professional services" means all services
other than automatic data processing, computer services, or
electronic information services, including but not limited to:
(a) Accounting and legal services such as advice on tax
matters, asset management, budgetary matters, quality control,
information security, and auditing and any other situation where
the service provider receives data or information and studies,
alters, analyzes, interprets, or adjusts such material;
(b) Analyzing business policies and procedures;
(c) Identifying management information needs;
(d) Feasibility studies, including economic and technical
analysis of existing or potential computer hardware or software
needs and alternatives;
(e) Designing policies, procedures, and custom software
for
collecting business information, and determining how data
should
be summarized, sequenced, formatted, processed, controlled,
and
reported so that it will be meaningful to management;
(f) Developing policies and procedures that document how
business events and transactions are to be authorized, executed,
and controlled;
(g) Testing of business procedures;
(h) Training personnel in business procedure applications;
(i) Providing credit information to users of such
information
by a consumer reporting agency, as defined in the
"Fair Credit
Reporting Act," 84 Stat. 1114, 1129 (1970), 15
U.S.C.
1681a(f), or
as hereafter amended, including but not
limited to
gathering,
organizing, analyzing, recording, and
furnishing such
information
by any oral, written, graphic, or
electronic medium;
(j) Providing debt collection services by any oral,
written,
graphic, or electronic means.
The services listed in divisions (Y)(2)(a) to (j) of this
section are not automatic data processing or computer services.
(Z) "Highway transportation for hire" means the
transportation of personal property belonging to others for
consideration by any of the following:
(1) The holder of a permit or certificate issued by this
state or the United States authorizing the holder to engage in
transportation of personal property belonging to others for
consideration over or on highways, roadways, streets, or any
similar public thoroughfare;
(2) A person who engages in the transportation of personal
property belonging to others for consideration over or on
highways, roadways, streets, or any similar public thoroughfare
but who could not have engaged in such transportation on December
11, 1985, unless the person was the holder of a permit or
certificate of the types described in division (Z)(1) of this
section;
(3) A person who leases a motor vehicle to and operates it
for a person described by division (Z)(1) or (2) of this section.
(AA)(1) "Telecommunications service" means the electronic
transmission, conveyance, or routing of voice, data, audio, video,
or any other information or signals to a point, or between or
among points. "Telecommunications service" includes such
transmission, conveyance, or routing in which computer processing
applications are used to act on the form, code, or protocol of the
content for purposes of transmission, conveyance, or routing
without regard to whether the service is referred to as voice-over
internet protocol service or is classified by the federal
communications commission as enhanced or value-added.
"Telecommunications service" does not include any of the
following:
(a) Data processing and information services that allow data
to be generated, acquired, stored, processed, or retrieved and
delivered by an electronic transmission to a consumer where the
consumer's primary purpose for the underlying transaction is the
processed data or information;
(b) Installation or maintenance of wiring or equipment on a
customer's premises;
(c) Tangible personal property;
(d) Advertising, including directory advertising;
(e) Billing and collection services provided to third
parties;
(f) Internet access service;
(g) Radio and television audio and video programming
services, regardless of the medium, including the furnishing of
transmission, conveyance, and routing of such services by the
programming service provider. Radio and television audio and video
programming services include, but are not limited to, cable
service, as defined in 47 U.S.C. 522(6), and audio and video
programming services delivered by commercial mobile radio service
providers, as defined in 47 C.F.R. 20.3;
(i) Digital products delivered electronically, including
software, music, video, reading materials, or ring tones.
(2) "Ancillary service" means a service that is associated
with or incidental to the provision of telecommunications service,
including conference bridging service, detailed telecommunications
billing service, directory assistance, vertical service, and voice
mail service. As used in this division:
(a) "Conference bridging service" means an ancillary service
that links two or more participants of an audio or video
conference call, including providing a telephone number.
"Conference bridging service" does not include telecommunications
services used to reach the conference bridge.
(b) "Detailed telecommunications billing service" means an
ancillary service of separately stating information pertaining to
individual calls on a customer's billing statement.
(c) "Directory assistance" means an ancillary service of
providing telephone number or address information.
(d) "Vertical service" means an ancillary service that is
offered in connection with one or more telecommunications
services, which offers advanced calling features that allow
customers to identify callers and manage multiple calls and call
connections, including conference bridging service.
(e) "Voice mail service" means an ancillary service that
enables the customer to store, send, or receive recorded messages.
"Voice mail service" does not include any vertical services that
the customer may be required to have in order to utilize the voice
mail service.
(3) "900 service" means an inbound toll telecommunications
service purchased by a subscriber that allows the subscriber's
customers to call in to the subscriber's prerecorded announcement
or live service, and which is typically marketed under the name
"900" service and any subsequent numbers designated by the federal
communications commission. "900 service" does not include the
charge for collection services provided by the seller of the
telecommunications service to the subscriber, or services or
products sold by the subscriber to the subscriber's customer.
(4) "Prepaid calling service" means the right to access
exclusively telecommunications services, which must be paid for in
advance and which enables the origination of calls using an access
number or authorization code, whether manually or electronically
dialed, and that is sold in predetermined units of dollars of
which the number declines with use in a known amount.
(5) "Prepaid wireless calling service" means a
telecommunications service that provides the right to utilize
mobile telecommunications service as well as other
non-telecommunications services, including the download of digital
products delivered electronically, and content and ancillary
services, that must be paid for in advance and that is sold in
predetermined units of dollars of which the number declines with
use in a known amount.
(6) "Value-added non-voice data service" means a
telecommunications service in which computer processing
applications are used to act on the form, content, code, or
protocol of the information or data primarily for a purpose other
than transmission, conveyance, or routing.
(7) "Coin-operated telephone service" means a
telecommunications service paid for by inserting money into a
telephone accepting direct deposits of money to operate.
(8) "Customer" has the same meaning as in section 5739.034 of
the Revised Code.
(BB) "Laundry and dry cleaning services" means removing
soil
or dirt from towels, linens, articles of
clothing, or other fabric
items that belong to others and supplying towels, linens, articles
of clothing, or other fabric items. "Laundry and dry cleaning
services" does not include the provision of self-service
facilities for use by consumers to remove soil or dirt from
towels, linens, articles of clothing, or other fabric items.
(CC) "Magazines distributed as controlled circulation
publications" means magazines containing at least twenty-four
pages, at least twenty-five per cent editorial content, issued at
regular intervals four or more times a year, and circulated
without charge to the recipient, provided that such magazines are
not owned or controlled by individuals or business concerns which
conduct such publications as an auxiliary to, and essentially for
the advancement of the main business or calling of, those who own
or control them.
(DD) "Landscaping and lawn care service" means the
services
of planting, seeding, sodding, removing, cutting,
trimming,
pruning, mulching, aerating, applying chemicals,
watering,
fertilizing, and providing similar services to
establish, promote,
or control the growth of trees, shrubs,
flowers, grass, ground
cover, and other flora, or otherwise
maintaining a lawn or
landscape grown or maintained by the owner
for ornamentation or
other nonagricultural purpose. However,
"landscaping and lawn
care
service" does not include the
providing of such services by a
person who has less than five
thousand dollars in sales of such
services during the calendar
year.
(EE) "Private investigation and security service" means
the
performance of any activity for which the provider of such
service
is required to be licensed pursuant to Chapter 4749. of
the
Revised Code, or would be required to be so licensed in
performing
such services in this state, and also includes the
services of
conducting polygraph examinations and of monitoring
or overseeing
the activities on or in, or the condition of, the
consumer's home,
business, or other facility by means of
electronic or similar
monitoring devices. "Private investigation
and security service"
does not include special duty services
provided by off-duty police
officers, deputy sheriffs, and other
peace officers regularly
employed by the state or a political
subdivision.
(FF) "Information services" means providing conversation,
giving consultation or advice, playing or making a voice or other
recording, making or keeping a record of the number of callers,
and any other service provided to a consumer by means of a nine
hundred telephone call, except when the nine hundred telephone
call is the means by which the consumer makes a contribution to a
recognized charity.
(GG) "Research and development" means designing, creating,
or
formulating new or enhanced products, equipment, or
manufacturing
processes, and also means conducting scientific or
technological
inquiry and experimentation in the physical
sciences
with the goal
of increasing scientific knowledge which
may reveal
the bases for
new or enhanced products, equipment, or
manufacturing processes.
(HH) "Qualified research and development equipment" means
capitalized tangible personal property, and leased personal
property that would be capitalized if purchased, used by a person
primarily to perform research and development. Tangible personal
property primarily used in testing, as defined in division (A)(4)
of section 5739.011 of the Revised Code, or used for recording or
storing test results, is not qualified research and development
equipment unless such property is primarily used by the consumer
in testing the product, equipment, or manufacturing process being
created, designed, or formulated by the consumer in the research
and development activity or in recording or storing such test
results.
(II) "Building maintenance and janitorial service" means
cleaning the interior or exterior of a building and any tangible
personal property located therein or thereon, including any
services incidental to such cleaning for which no separate charge
is made. However, "building maintenance and janitorial service"
does not include the providing of such service by a person who
has
less than five thousand dollars in sales of such service
during
the calendar year.
(JJ) "Employment service" means providing or supplying
personnel, on a temporary or long-term basis, to perform work or
labor under the supervision or control of another, when the
personnel so provided or supplied receive their wages, salary, or
other
compensation from the provider or supplier of the employment
service or from a third party that provided or supplied the
personnel to the provider or supplier. "Employment
service" does
not include:
(1) Acting as a contractor or subcontractor, where the
personnel performing the work are not under the direct control of
the purchaser.
(2) Medical and health care services.
(3) Supplying personnel to a purchaser pursuant to a
contract
of at least one year between the service provider and
the
purchaser that specifies that each employee covered under the
contract is assigned to the purchaser on a permanent basis.
(4) Transactions between members of an affiliated group,
as
defined in division (B)(3)(e) of this section.
(5) Transactions where the personnel so provided or supplied
by a provider or supplier to a purchaser of an employment service
are then provided or supplied by that purchaser to a third party
as an employment service, except "employment service" does include
the transaction between that purchaser and the third party.
(KK) "Employment placement service" means locating or
finding
employment for a person or finding or locating an
employee
to fill
an available position.
(LL) "Exterminating service" means eradicating or
attempting
to eradicate vermin infestations from a building or
structure, or
the area surrounding a building or structure, and
includes
activities to inspect, detect, or prevent vermin
infestation of a
building or structure.
(MM) "Physical fitness facility service" means all
transactions by which a membership is granted, maintained, or
renewed, including initiation fees, membership dues, renewal
fees,
monthly minimum fees, and other similar fees and dues, by a
physical fitness facility such as an athletic club, health spa,
or
gymnasium, which entitles the member to use the facility for
physical exercise.
(NN) "Recreation and sports club service" means all
transactions by which a membership is granted, maintained, or
renewed, including initiation fees, membership dues, renewal
fees,
monthly minimum fees, and other similar fees and dues, by a
recreation and sports club, which entitles the member to use the
facilities of the organization. "Recreation and sports club"
means
an organization that has ownership of, or controls or
leases
on a
continuing, long-term basis, the facilities used by
its
members
and includes an aviation club, gun or shooting club,
yacht
club,
card club, swimming club, tennis club, golf club,
country
club,
riding club, amateur sports club, or similar
organization.
(OO) "Livestock" means farm animals commonly raised for
food
or food production, and includes but is not limited to
cattle,
sheep, goats, swine, and poultry. "Livestock" does not
include
invertebrates, fish, amphibians, reptiles, horses,
domestic pets,
animals for use in laboratories or for exhibition,
or other
animals not commonly raised for food or food production.
(PP) "Livestock structure" means a building or structure
used
exclusively for the housing, raising, feeding, or sheltering
of
livestock, and includes feed storage or handling structures
and
structures for livestock waste handling.
(QQ) "Horticulture" means the growing, cultivation, and
production of flowers, fruits, herbs, vegetables, sod, mushrooms,
and nursery stock. As used in this division, "nursery stock" has
the same meaning as in section 927.51 of the Revised Code.
(RR) "Horticulture structure" means a building or
structure
used exclusively for the commercial growing, raising,
or
overwintering of horticultural products, and includes the area
used for stocking, storing, and packing horticultural products
when done in conjunction with the production of those products.
(SS) "Newspaper" means an unbound publication bearing a
title
or
name that is regularly published, at least as frequently
as
biweekly, and
distributed from a fixed place of business to the
public in a specific
geographic area, and that contains a
substantial amount of news matter of
international, national, or
local events of interest to the general public.
(TT) "Professional
racing team" means a person that employs
at least twenty
full-time employees for the purpose of conducting
a motor
vehicle racing business for profit. The person must
conduct the
business with the purpose of racing one or more motor
racing
vehicles in at least ten competitive professional racing
events
each year that comprise all or part of a motor racing
series
sanctioned by one or more motor racing sanctioning
organizations. A "motor racing vehicle" means a vehicle for
which
the chassis, engine, and parts are designed
exclusively for motor
racing, and does not include a stock
or production model vehicle
that may be modified for use in
racing. For the purposes of this
division:
(1) A "competitive professional racing event" is a motor
vehicle racing event sanctioned by one or more motor racing
sanctioning organizations, at which aggregate cash prizes in
excess of eight hundred thousand dollars are awarded to
the
competitors.
(2) "Full-time employee" means an individual who is
employed
for consideration for thirty-five or more hours a week,
or who
renders any other standard of service generally accepted
by custom
or specified by contract as full-time
employment.
(UU)(1) "Lease" or "rental" means any transfer of the
possession or control of tangible
personal property for a fixed or
indefinite term, for consideration. "Lease" or "rental" includes
future options to purchase or extend, and agreements described in
26 U.S.C. 7701(h)(1) covering motor vehicles and trailers where
the amount of consideration may be increased or decreased by
reference to the amount realized upon the sale or disposition of
the property. "Lease" or "rental" does not include:
(a) A transfer of possession or control of tangible personal
property under a security agreement or a deferred payment plan
that requires the transfer of title upon completion of the
required payments;
(b) A transfer of possession or control of tangible personal
property under an agreement that requires the transfer of title
upon completion of required payments and payment of an option
price that does not exceed the greater of one hundred dollars or
one per cent of the total required payments;
(c) Providing tangible personal property along with an
operator for a fixed or indefinite period of time, if the operator
is necessary for the property to perform as designed. For purposes
of this division, the operator must do more than maintain,
inspect, or set-up the tangible personal property.
(2) "Lease" and "rental," as defined in division (UU) of this
section, shall not apply to leases or rentals that exist before
June 26, 2003.
(3) "Lease" and "rental" have the same meaning as in division
(UU)(1) of this section regardless of whether a transaction is
characterized as a lease or rental under generally accepted
accounting principles, the Internal Revenue Code, Title XIII of
the Revised Code, or other federal, state, or local laws.
(VV) "Mobile telecommunications service" has the same
meaning
as in the "Mobile Telecommunications Sourcing Act," Pub.
L.
No.
106-252, 114 Stat. 631 (2000), 4 U.S.C.A. 124(7), as
amended, and,
on and after August 1, 2003, includes related fees and ancillary
services, including universal service fees, detailed billing
service, directory assistance, service initiation, voice mail
service, and vertical services, such as caller ID and three-way
calling.
(WW) "Certified service provider" has the same meaning as in
section 5740.01 of the Revised Code.
(XX) "Satellite broadcasting service" means the distribution
or broadcasting of programming or services by satellite directly
to the subscriber's receiving equipment without the use of ground
receiving or distribution equipment, except the subscriber's
receiving equipment or equipment used in the uplink process to the
satellite, and includes all service and rental charges, premium
channels or other special services, installation and repair
service charges, and any other charges having any connection with
the provision of the satellite broadcasting service.
(YY) "Tangible personal property" means personal property
that can be seen, weighed, measured, felt, or touched, or that is
in any other manner perceptible to the senses. For purposes of
this chapter and Chapter 5741. of the Revised Code, "tangible
personal property" includes motor vehicles, electricity, water,
gas, steam, and prewritten computer software.
(ZZ) "Direct mail" means printed material delivered or
distributed by United States mail or other delivery service to a
mass audience or to addressees on a mailing list provided by the
consumer or at the direction of the consumer when the cost of the
items are not billed directly to the recipients. "Direct mail"
includes tangible personal property supplied directly or
indirectly by the consumer to the direct mail vendor for inclusion
in the package containing the printed material. "Direct mail" does
not include multiple items of printed material delivered to a
single address.
(AAA) "Computer" means an electronic device that accepts
information in digital or similar form and manipulates it for a
result based on a sequence of instructions.
(BBB) "Computer software" means a set of coded instructions
designed to cause a computer or automatic data processing
equipment to perform a task.
(CCC) "Delivered electronically" means delivery of computer
software from the seller to the purchaser by means other than
tangible storage media.
(DDD) "Prewritten computer software" means computer software,
including prewritten upgrades, that is not designed and developed
by the author or other creator to the specifications of a specific
purchaser. The combining of two or more prewritten computer
software programs or prewritten portions thereof does not cause
the combination to be other than prewritten computer software.
"Prewritten computer software" includes software designed and
developed by the author or other creator to the specifications of
a specific purchaser when it is sold to a person other than the
purchaser. If a person modifies or enhances computer software of
which the person is not the author or creator, the person shall be
deemed to be the author or creator only of such person's
modifications or enhancements. Prewritten computer software or a
prewritten portion thereof that is modified or enhanced to any
degree, where such modification or enhancement is designed and
developed to the specifications of a specific purchaser, remains
prewritten computer software; provided, however, that where there
is a reasonable, separately stated charge or an invoice or other
statement of the price given to the purchaser for the modification
or enhancement, the modification or enhancement shall not
constitute prewritten computer software.
(EEE)(1)
"Food"
means substances, whether in liquid,
concentrated, solid, frozen, dried, or dehydrated form, that are
sold for ingestion or chewing by humans and are consumed for their
taste or nutritional value. "Food" does not include alcoholic
beverages, dietary supplements, soft drinks, or tobacco.
(2) As used in division (EEE)(1) of this section:
(a) "Alcoholic beverages" means beverages that are suitable
for human consumption and contain one-half of one per cent or more
of alcohol by volume.
(b) "Dietary supplements" means any product, other than
tobacco, that is intended to supplement the diet and that is
intended for ingestion in tablet, capsule, powder, softgel,
gelcap, or liquid form, or, if not intended for ingestion in such
a form, is not represented as conventional food for use as a sole
item of a meal or of the diet; that is required to be labeled as a
dietary supplement, identifiable by the "supplement facts" box
found on the label, as required by 21 C.F.R. 101.36; and that
contains one or more of the following dietary ingredients:
(iii) An herb or other botanical;
(v) A dietary substance for use by humans to supplement the
diet by increasing the total dietary intake;
(vi) A concentrate, metabolite, constituent, extract, or
combination of any ingredient described in divisions
(EEE)(2)(b)(i) to (v) of this section.
(c) "Soft drinks" means nonalcoholic beverages that contain
natural or artificial sweeteners. "Soft drinks" does not include
beverages that contain milk or milk products, soy, rice, or
similar milk substitutes, or that contains greater than fifty per
cent vegetable or fruit juice by volume.
(d) "Tobacco" means cigarettes, cigars, chewing or pipe
tobacco, or any other item that contains tobacco.
(FFF) "Drug" means a compound, substance, or preparation, and
any component of a compound, substance, or preparation, other than
food, dietary supplements, or alcoholic beverages that is
recognized in the official United States pharmacopoeia, official
homeopathic pharmacopoeia of the United States, or official
national formulary, and supplements to them; is intended for use
in the diagnosis, cure, mitigation, treatment, or prevention of
disease; or is intended to affect the structure or any function of
the body.
(GGG) "Prescription" means an order, formula, or recipe
issued in any form of oral, written, electronic, or other means of
transmission by a duly licensed practitioner authorized by the
laws of this state to issue a prescription.
(HHH) "Durable medical equipment" means equipment, including
repair and replacement parts for such equipment, that can
withstand repeated use, is primarily and customarily used to serve
a medical purpose, generally is not useful to a person in the
absence of illness or injury, and is not worn in or on the body.
"Durable medical equipment" does not include mobility enhancing
equipment.
(III) "Mobility enhancing equipment" means equipment,
including repair and replacement parts for such equipment, that is
primarily and customarily used to provide or increase the ability
to move from one place to another and is appropriate for use
either in a home or a motor vehicle, that is not generally used by
persons with normal mobility, and that does not include any motor
vehicle or equipment on a motor vehicle normally provided by a
motor vehicle manufacturer. "Mobility enhancing equipment" does
not include durable medical equipment.
(JJJ) "Prosthetic device" means a replacement, corrective, or
supportive device, including repair and replacement parts for the
device, worn on or in the human body to artificially
replace a
missing portion of the body, prevent or correct physical deformity
or malfunction, or support a weak or deformed portion of the body.
As used in this division, "prosthetic device" does not include
corrective eyeglasses, contact lenses, or dental prosthesis.
(KKK)(1) "Fractional aircraft ownership program" means a
program in which persons within an affiliated group sell and
manage fractional ownership program aircraft, provided that at
least one hundred airworthy aircraft are operated in the program
and the program meets all of the following criteria:
(a) Management services are provided by at least one program
manager within an affiliated group on behalf of the fractional
owners.
(b) Each program aircraft is owned or possessed by at least
one fractional owner.
(c) Each fractional owner owns or possesses at least a
one-sixteenth interest in at least one fixed-wing program
aircraft.
(d) A dry-lease aircraft interchange arrangement is in effect
among all of the fractional owners.
(e) Multi-year program agreements are in effect regarding the
fractional ownership, management services, and dry-lease aircraft
interchange arrangement aspects of the program.
(2) As used in division (KKK)(1) of this section:
(a) "Affiliated group" has the same meaning as in division
(B)(3)(e) of this section.
(b) "Fractional owner" means a person that owns or possesses
at least a one-sixteenth interest in a program aircraft and has
entered into the agreements described in division (KKK)(1)(e) of
this section.
(c) "Fractional ownership program aircraft" or "program
aircraft" means a turbojet aircraft that is owned or possessed by
a fractional owner and that has been included in a dry-lease
aircraft interchange arrangement and agreement under divisions
(KKK)(1)(d) and (e) of this section, or an aircraft a program
manager owns or possesses primarily for use in a fractional
aircraft ownership program.
(d) "Management services" means administrative and aviation
support services furnished under a fractional aircraft ownership
program in accordance with a management services agreement under
division (KKK)(1)(e) of this section, and offered by the program
manager to the fractional owners, including, at a minimum, the
establishment and implementation of safety guidelines; the
coordination of the scheduling of the program aircraft and crews;
program aircraft maintenance; program aircraft insurance; crew
training for crews employed, furnished, or contracted by the
program manager or the fractional owner; the satisfaction of
record-keeping requirements; and the development and use of an
operations manual and a maintenance manual for the fractional
aircraft ownership program.
(e) "Program manager" means the person that offers management
services to fractional owners pursuant to a management services
agreement under division (KKK)(1)(e) of this section.
(LLL) "Electronic publishing" means providing access to
one
or more of the following primarily for business customers,
including the federal government or a state government or a
political subdivision thereof, to conduct research: news;
business, financial, legal, consumer, or credit materials;
editorials, columns, reader commentary, or features; photos or
images; archival or research material; legal notices, identity
verification, or public records; scientific, educational,
instructional, technical, professional, trade, or other literary
materials; or other similar information which has been gathered
and made available by the provider to the consumer in an
electronic format. Providing electronic publishing includes the
functions necessary for the acquisition, formatting, editing,
storage, and dissemination of data or information that is the
subject of a sale.
Section 2. That existing section 5739.01 of the Revised Code
is hereby repealed.
Section 3. That the amendment by this act of section 5739.01
of the Revised Code first applies on the first day of the month
immediately following the effective date of this act.
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